Escalante, L. v. State Farm Mutual Auto. ( 2021 )

J-A13009-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LORRAINE ESCALANTE AND PATRICK : IN THE SUPERIOR COURT OF
ESCALANTE : PENNSYLVANIA
:
Appellants :
:
:
v. :
:
: No. 1279 EDA 2020
STATE FARM MUTUAL AUTOMOBILE :
INSURANCE COMPANY :
Appeal from the Order Entered June 2, 2020
In the Court of Common Pleas of Monroe County Civil Division at No(s):
No. 2018-03746
LORRAINE ESCALANTE AND PATRICK : IN THE SUPERIOR COURT OF
ESCALANTE : PENNSYLVANIA
:
Appellants :
:
:
v. :
:
: No. 1280 EDA 2020
STATE FARM MUTUAL AUTOMOBILE :
INSURANCE COMPANY :
Appeal from the Order Entered May 18, 2020
In the Court of Common Pleas of Monroe County Civil Division at No(s):
No. 2018-03746
BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: Filed: August 26, 2021
In these consolidated cases, Lorraine Escalante and Patrick Escalante
(hereinafter, “Appellants”) appeal from the trial court’s May 18, 2020 and June
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* Former Justice specially assigned to the Superior Court.
J-A13009-21
2, 2020 orders. In the May 18, 2020 order, the court granted Appellee’s,
State Farm Mutual (hereinafter, “State Farm”), motion to vacate the judgment
entered in this case in favor of Appellants in the amount of $800,000. The
court’s June 2, 2020 order granted State Farm’s post-trial motion and ordered
a new trial based on a jury-selection error. After careful review, we affirm
both orders and remand for a new trial.
The trial court summarized the pertinent history of this case, as follows:
[Appellants] initiated this action on May 21, 2018, seeking
underinsured motorist benefits from [State Farm] after Lorraine
Escalante suffered direct damages from an automobile accident
and her husband, Patrick Escalante, suffered resulting loss of
consortium damages. All parties stipulated to [State Farm’s]
liability, and the case proceeded to trial on the issue of damages
only.
On November 8, 2019, the parties selected a jury, with trial
commencing on November 12, 2019, and proceeding through
November 13, 2019. Following the close of evidence on November
13, 2019, the jury returned a verdict for [Appellants] in the
amount of $800,000 – broken down, the jury awarded Lorraine
Escalante $300,000 for past and future medical expenses,
$450,000 for past, present, and future pain and suffering, and
awarded Patrick Escalante $50,000 for loss of consortium. In the
days and weeks following the jury verdict, this [c]ourt was made
aware of the extent of a Monroe County Court of Common Pleas
jury selection software error resulting in at least two mistrials from
other judges on our bench, including a two-week murder trial on
its sixth day.
Unbeknownst to the [c]ourt and the parties at the time of jury
selection and trial, the malfunction in jury selection software
caused a transcription error to occur on an unknown number of
jury questionnaires. All jurors called to serve are required to
complete a jury questionnaire. These completed questionnaire
answers are then tabulated and provided to attorneys to assist
them in their voir dire and ultimate selection for each jury panel.
While most jurors choose to fill out their questionnaire online,
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prior to jury selection, a small percentage, approximately ten
percent according to the [c]ourt’s management office, choose to
complete a paper questionnaire upon reporting to the courthouse.
The paper questionnaires are collected by court staff, scanned into
the computer system, and a tabulation of each of the panel
members’ answers are provided to the attorneys for use at jury
selection.
To this [c]ourt’s knowledge, the malfunction occurred only in
regards to the paper questionnaires. Prior to the November 2019
trial term, the [c]ourt upgraded its computer system from
Windows 7 to Windows 10. Due to the Windows 10 upgrade, a
transcription error occurred when the juror questionnaires were
scanned and processed; corresponding questions and answers
were offset from one another. Unfortunately, due to the unknown
error, [c]ourt staff provided all attorneys and parties during the
November term with inaccurate juror information. In the other
cases before this bench where mistrials were declared, the error
was discovered during trial. However, in this case, the jury
selection error was not discovered until after the verdict was
reached.
On November 22, 2019, [State Farm] filed a timely [m]otion for
[p]ost-[t]rial [r]elief raising a number of issues. We note that at
this time[,] none of [State Farm’s] alleged errors addressed the
jury selection process. In December of 2019, the Monroe County
Court Administrator advised this [c]ourt that a jury selection error
may have affected the instant matter. Unfortunately, the Court
Administration was unable to discern which questionnaires were
incorrect and the extent of possible damage, as the questionnaires
had already been destroyed and removed from the archive system
in accordance with state law. On December 27, 2019, we issued
a scheduling order to hold a hearing on [State Farm’s] [m]otion
for [p]ost-[t]rial [r]elief for January 9, 2020. The January 9, 2020
hearing proceeded as scheduled. After hearing arguments
regarding [State Farm’s] November 22, 2019 [m]otion for [p]ost-
[t]rial [r]elief, this [c]ourt informed both parties of the jury
selection error that occurred during the November trial term. We
indicated that inaccurate juror questionnaire responses may have
been provided by the [c]ourt at the time of voir dire, and that the
jury questionnaires at issue were destroyed on December 18,
2019. See [N.T. Hearing, 1/9/2020, at] 27-32.
On January 23, 2020, [State Farm] filed a [s]econd [m]otion for
[p]ost-[t]rial [r]elief raising the issue of the jury selection error,
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arguing [that State Farm] was unaware of the error until informed
by the [c]ourt during the January 9, 2020 hearing. On February
3, 2020, we ordered supplemental briefs to be filed on the issue
of the jury selection error.
Trial Court Opinion & Order (“TCOO”), 6/2/20, at 1-4.
In the ensuing months, the court did not rule on State Farm’s post-trial
motions. On May 12, 2020 (124 days after State Farm’s second motion for
post-trial relief was filed), Appellants praeciped for the entry of judgment. The
prothonotary entered judgment in favor of Appellants that same day. On May
15, 2020, State Farm filed a motion to vacate the judgment, arguing that all
time calculations had been suspended by court order due to the COVID-19
pandemic and, thus, the prothonotary had lacked the authority to enter the
judgment.
On May 18, 2020, the trial court issued an order granting State Farm’s
motion and vacating the May 12, 2020 judgment. On June 2, 2020, the court
issued an order and opinion granting State Farm’s motion for post-trial relief
and ordering a new trial in light of the jury-questionnaire issue. Appellants
thereafter filed separate, timely appeals from the court’s May 18, 2020 order
vacating the judgment, and the June 2, 2020 order awarding State Farm a
new trial.1 The trial court thereafter ordered Appellants to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal, and they timely
complied. The court filed a Rule 1925(a) statement on August 6, 2020.
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1 The two appeals were subsequently consolidated by this Court upon
stipulation of the parties.
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Herein, Appellants present 17 issues for our review:
1. Whether the [t]rial [c]ourt erred as a matter of law and abused
its discretion in vacating the judgement [sic] entered by the
Prothonotary entered judgement [sic] on May 12, 2020[,]
pursuant to Pa.R.C.P. 227.4(1)(b).
2. Whether the [t]rial [c]ourt lacked jurisdiction and erred as a
matter of law when it enter[ed] its Order dated May 18, 2020[,]
vacating the judgement [sic] and/or subsequently setting aside
the jury verdict and ordering a new trial.
3. Whether the [t]rial [c]ourt erred as a matter of law and abused
its discretion in setting aside the jury’s verdict ordering a new trial
after [Appellants] properly praeciped and the Prothonotary
properly entered judgement [sic] pursuant to Pa.R.C.P.
227.4(1)(b).
4. Whether the [t]rial [c]ourt erred as a matter of law and abused
its discretion in setting aside the [j]udgment entered May 12,
2020[,] and/or the jury’s verdict[,] and ordering a new trial[,]
when it was divested of jurisdiction by the proper entry of
[j]udgement [sic] on May 12, 2020[,] and [it] lack[ed] the
jurisdiction and authority to enter its [o]rder dated May 18, 2020,
setting aside the [j]udgement [sic] entered May 12, 2020.
5. Whether the [t]rial [c]ourt erred as a matter of law and abused
its discretion in relying upon hearsay, ex[]parte, non-record
communications allegedly with Monroe County Court
Administrator, and/or others, and extra-record information in
setting aside the jury verdict and ordering a new trial.
6. Whether the [t]rial [c]ourt erred as a matter of law and abused
its discretion in setting aside the [j]ury’s verdict without any
competent evidence of records or otherwise that the alleged error
in the jury selection process even occurred.
7. Whether the [t]rial [c]ourt erred as a matter of law and abused
its discretion[,] and applied the wrong standard of review in
ordering a new trial[,] where [State Farm] failed to produce any
evidence that any alleged error affected the jury selection process
in this case.
8. Whether the [t]rial [c]ourt erred as a matter of law, abused its
discretion[,] and applied the wrong burden of proof in ordering a
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new trial where [State Farm] failed to produce any evidence that
any alleged error affected the jury selection process in this case,
and failed to allege or prove the existence of any reason for
objection to any of the jurors.
9. Whether the [t]rial [c]ourt erred in failing to find that [State
Farm] waived any argument by failing to ask appropriate
questions during voir dire that would have revealed any alleged
problem with the jury panel.
10. Whether the [t]rial [c]ourt erred as a matter of law and abused
its discretion in ordering a new trial where [State Farm] offered
no proof of prejudice, just bald assertions, guess, conjecture and
speculation, which is not proof. [State Farm] did not request a
transcript of the jury selection process, did not request and/or
seek to take testimony from the jurors who sat on the panel
and/or those who sat thru [sic] the jury selection process, and/or
request and/or seek to take testimony from the Court
Administrator and/or Court Administration staff. All of those
individuals were known to [State Farm], since jury selection, but
[State Farm] failed to take any steps to prove any alleged
prejudice.
11. Whether the … [t]rial [c]ourt erred as a matter in law and
abused its discretion in ignoring clear, unequivocal[,] and
controlling precedent of the Pennsylvania Supreme Court
specifically holding that questionnaires “are to be used in
conjunction with and not as a substitute for oral examination[,”]
and that “the failure to ask appropriate questions on voir dire
waives any disqualification which might have been revealed on
voir dire[.”]
12. Whether the … [t]rial [c]ourt erred as a matter of law in
ordering a new trial based on the alleged problem with the juror
questionnaires where [State Farm] did not allege or offer any
proof that it read, relied upon and/or used any of the information
contained in the juror questionnaires, and there was no competent
evidence offered to establish that the juror questionnaires for this
case were inaccurate.
13. Whether the … [t]rial [c]ourt erred as matter of law and
abused its discretion in concluding, without any record or
evidence, competent or otherwise, that “the jury selection error”
even occurred in this case and by presuming prejudice to [State
Farm].
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14. Whether the … [t]rial [c]ourt erred as matter of law and
abused its discretion in ignoring [State Farm’s] burden of proof
and simply presuming that the alleged jury selection error
somehow contributed to the jury’s verdict.
15. Whether the … [t]rial [c]ourt erred as a matter of law and
abused its discretion in concluding, without any competent
evidence, that inaccurate answers were provided to counsel
during the jury selection process in this case.
16. Whether the … [t]rial [c]ourt erred as a matter of law and
abused its discretion in addressing and granting [State Farm’s]
improper and untimely second motion for Post Trial Relief in
violation of Pa.R.C.P. 227.1(c).
17. Whether the … [t]rial [c]ourt erred in granting a new trial for
reasons that [State Farm] did not[] raise during jury selection
and/or preserve during trial by motion, objection, and/or other
appropriate method during jury selection or at trial in violation of
Pa.R.C.P. 227.1 (b)(1) and/or 42 Pa.C.S.A. § 4527.
Appellants’ Brief at 5-9 (unnumbered).2
Initially, although presenting 17 claims in their Statement of Questions
Presented, Appellants do not present 17 corresponding issues in their
Argument Section. Instead, they divide their 34-page Argument into only two
parts, labeling them “ARGUMENT I” and “ARGUMENT II,” with no headings to
indicate what points will be discussed in those sections. Id. at 30, 39. We
reprimand Appellants for not conforming their brief to the requirements set
forth in Pa.R.A.P. 2119 (“The argument shall be divided into as many parts as
there are questions to be argued; and shall have at the head of each part--in
distinctive type or in type distinctively displayed--the particular point treated
____________________________________________
2 Frustratingly, Appellants have presented this Court with a 64-page brief that
contains no page numbers. Our numbering of their brief for citation purposes
begins with their Statement of Jurisdiction section being page 1.
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therein, followed by such discussion and citation of authorities as are deemed
pertinent.”). Nevertheless, because we can discern Appellants’ main
arguments, we will overlook this briefing error.
We first address Appellants’ challenge to the court’s May 15, 2020 order
vacating the May 12, 2020 judgment. Appellants contend that the court
lacked jurisdiction to vacate the May 12, 2020 judgment, which they insist
was validly entered. In support of their position, Appellants rely on Pa.R.C.P.
227.4(1)(b), which authorizes the prothonotary to enter judgment upon
praecipe of a party where “one or more timely post-trial motions are filed and
the court does not enter an order disposing of all motions within one hundred
twenty days after the filing of the first motion.” The rule further states that
“[a] judgment entered pursuant to this subparagraph shall be final as to all
parties and all issues and shall not be subject to reconsideration….” Id.
Pursuant to Rule 227.4(1)(b), Appellants contend that the prothonotary
properly entered judgment upon their praecipe, as it was filed 124 days after
State Farm filed its second motion for post-trial relief. They further aver that,
because the rule explicitly precludes reconsideration, the court lacked
jurisdiction to grant State Farm’s motion to vacate the judgment. According
to Appellants, the only recourse for State Farm was to file an appeal with this
Court challenging the judgment.
In response, State Farm contends that the prothonotary lacked the
authority to enter the judgment, and, thus, the trial court correctly vacated it.
State Farm reasons that Appellants’ praecipe for entry of judgment was
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premature in light of several emergency orders issued by the Honorable
President Judge (hereinafter, “P.J.”) Margherita Patti-Worthington of the
Monroe County Court of Common Pleas in response to the COVID-19
pandemic. Specifically, on March 16, 2020, P.J. Patti-Worthington issued a
Declaration of Judicial Emergency, extending from March 15, 2020, through
April 14, 2020. In re: 43rd Judicial Dist. Declaration of Judicial
Emergency, 3/16/20, at 1; see also Appellants’ Reproduced Record at
1464a. That same day, P.J. Patti-Worthington issued another order directing
that “[t]ime calculations for the purposes of time computation relevant to
court cases or other judicial business, as well as time deadlines are suspended,
subject to constitutional restrictions.” In re: Modifications to Procedures,
No. 62 AD 2020, at 1 ¶ 1 (Monroe Co. Ct. Comm. Pls. filed Mar. 16, 2020).
On April 22, 2020, P.J. Patti-Worthington issued another “Emergency
Administrative Order” that extended the Declaration of Judicial Emergency
through May 31, 2020. See In re: 43rd Judicial Dist. Emergency
Administrative Order COVID-19, No. 76 AD 2020, at 1 ¶ 1 (Monroe Co. Ct.
Comm. Pls. filed April 22, 2020). The order further stated, in pertinent part:
2. All Administrative Orders concerning the COVID-19 pandemic
subsequent to the initial Declaration of Emergency cited in
paragraph 1 herein, closing the Courts to the public generally and
limiting proceedings to those emergencies delineated in this
Court’s previous Administrative Orders and the Pennsylvania
Supreme Court’s Administrative Orders, remain in effect.
3. All Administrative Orders concerning the COVID-19 pandemic
including and subsequent to this Court’s initial Declaration of
Judicial Emergency which affect the operations and procedures of
the Court during this time remain in effect.
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Id. at 2 ¶¶ 2, 3.
Pursuant to the language of these orders, the trial court concluded that
the 120-day time requirement of Rule 227.4(1)(b) was “effectively tolled” and,
thus, the prothonotary incorrectly granted Appellants’ praecipe for entry of
judgment. Trial Court Opinion (“TCO”), 8/6/20, at 4. State Farm agrees,
contending that the Monroe County Court of Common Pleas suspended all time
calculations through May 31, 2020. Therefore, it insists that the 120-day
time-period set forth in Rule 227.4(1)(b) was suspended, and the
prothonotary lacked authority to enter judgment upon praecipe by Appellants
until the judicial emergency ended. See State Farm’s Brief at 17-19 (relying
on Slusser v. Laputka, Bayless, Ecker, and Cohn, P.C., 9 A.3d 1200,
1205-06 (Pa. Super. 2010) (finding that because the appellees’ praecipe to
enter judgment was premature, “the prothonotary was without the authority
to enter the judgment”)).
We concur with the trial court and State Farm that the emergency orders
issued by P.J. Patti-Worthington suspended all time calculations through May
31, 2020. Thus, the 120-day time-limit of Rule 227.4(1)(b) did not apply,
and Appellants’ praecipe for entry of judgment was premature. Consequently,
the prothonotary lacked authority to enter the May 12, 2020 judgment. See
Slusser, supra. Our Court has held that, where a timely post-trial motion is
outstanding and the 120-day time-period has not expired, the prothonotary
has no authority to enter judgment, and any such judgment entered is “void,
a nullity, and lacking in legal effect.” Linde v. Linde, 222 A.3d 776, 779–80
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(Pa. Super. 2019) (citing Gotwalt v. Dellinger, 577 A.2d 623, 624-25 (Pa.
Super. 1990) (stating that, “[d]ue to the prothonotary’s purely ministerial
status, the authority for [its] actions derive[s] from either statute or rule of
court…. [W]here it is established that the prothonotary has entered judgment
against a party beyond [its] authority, such action is considered void and the
judgment entered by [it] is a nullity and lacks legal effect”); see also Comm.
ex rel. Penland v. Ashe, 19 A.2d 464, 466 (Pa. 1941) (holding that a void
judgment is “no judgment at all”)). Thus, because the judgment was legally
null and void, it did not divest the trial court of jurisdiction to vacate it.
Moreover, we reject Appellants’ contention that State Farm’s only
recourse was to file an appeal with this Court. Indeed, such an appeal would
have been quashed. See Slusser, 9 A.3d at 1206 (stating that, had the
appellants appealed from the judgment that the prothonotary lacked power to
enter, “we would have quashed the appeals”). Instead, as our Supreme Court
has stated, “it is the duty of the court of its own motion to strike off [a void
judgment] whenever its attention is called to it.” Romberger v. Romberger,
139 A. 159, 160 (Pa. 1927). Here, State Farm alerted the trial court, in its
motion filed on May 15, 2020, that the judgment entered on May 12, 2020,
was premature and invalid. Because we conclude that the court had the power
to vacate the legally void judgment, we affirm the court’s May 18, 2020 order.
Next, Appellants challenge the court’s June 2, 2020 order granting State
Farm’s second post-trial motion and awarding it a new trial. Preliminarily, we
recognize the
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fundamental and longstanding precept that the decision
to order a new trial is one that lies within the discretion of the trial
court. Thus, the standard for appellate review of such a decision
is always an abuse of discretion standard. In contrast,
the scope of the appellate court’s review of the trial court’s
decision varies: It is determined by whether the trial court cites a
finite set of reasons for its decision, indicating that but for the
cited reasons it would not have granted a new trial, or leaves open
the possibility that it would have ordered a new trial for reasons
other than those it specified.
If the trial court leaves open the possibility that reasons additional
to those specifically mentioned might warrant a new trial,
or orders a new trial “in the interests of justice,” the appellate
court applies a broad scope of review, examining the entire record
for any reason sufficient to justify a new trial. However, if, as in
this case, the trial court indicates that the reasons it gives are the
only basis for which it ordered a new trial, an appellate court can
only examine the stated reasons.
Morrison v. Com., Dep't of Pub. Welfare, Off. of Mental Health
(Woodville State Hosp.), 646 A.2d 565, 570 (Pa. 1994) (cleaned up;
footnote and emphasis omitted).
Here, the trial court ordered a new trial based solely on the jury
questionnaire error. Thus, we examine whether the court abused its discretion
in ruling that a new trial is necessary for that single reason.
Appellants first argue that the court abused its discretion because State
Farm’s motion was untimely, as it was filed beyond 10 days after the jury’s
verdict. See Pa.R.C.P. 227.1(c)(1). Appellants stress that the motion was
filed 70 days after the verdict, and 14 days after the court notified the parties
of the jury-questionnaire issue. Thus, Appellants insist that State Farm’s
motion was untimely, and the court erred by granting relief.
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We disagree. The trial court observed, in its opinion accompanying its
order granting State Farm’s second post-trial motion, that,
the “ten-day time period is not a jurisdictional requirement but
merely a procedural rule[,” and thus,] the trial court “has
discretion to consider untimely motions…[.]” Arches
Condominium Ass’n v. Robinson, 131 A.3d 122, 129 (Pa.
Cmwlth. 2015) (citing King v. Riverwatch Condominium
Owners Ass[’n], 27 A.3d 276, 278 (Pa. Cmwlth. 2011)[)].
According to [the] Superior Court in Carlos R. Leffler, Inc. v.
Hutter, [696 A.2d 157 (Pa. Super. 1997),] “a trial court may elect
to overlook the procedural defect if no objection is made … [and]
if objections are lodged[,] … the trial court … must first consider
whether the objecting party would be prejudiced by the court’s
ruling.” [Id. at] 166 … (citing Millard v. Nagle, 587 A.2d 10 (Pa.
Super. 1991)[)]. For the following reasons, we find [Appellants]
are not prejudiced by our consideration of [State Farm’s] untimely
[m]otion for [p]ost-[t]rial [r]elief; in our discretion, we elect to
overlook the procedural defect.
TCOO at 4-5.
The court then explained:
We find the instant case procedurally similar to the occurrences in
Millard…. In Millard, [the a]ppellant originally filed a timely
post-trial motion that was later supplemented with additional
requests for post-trial relief. [The a]ppellees objected to the
untimeliness of the supplemental relief, claiming that [the
a]ppellant “[did not show] any cause for delay to the prejudice of
Defendants.” [Millard, 587 A.2d at 12]. [The] Superior Court
found that the trial court properly considered [the a]ppellant’s
untimely motions for two reasons. First, there was “no specific
allegations of prejudice claimed by the [a]ppellee.” Id. Second,
the trial court still “had before it timely filed post-trial motions
which had not yet been argued or decided”; [the a]ppellees were
still within the trial court’s jurisdiction and their position in the
litigation had not changed. Id. Similarly, in the instant case,
[Appellants] have not articulated specific allegations of prejudice
and [State Farm] filed a timely[, first] motion for post-trial relief,
which … remained pending in front of this [c]ourt [at the time its
second post-trial motion was filed]. Therefore, like the [a]ppellees
in Millard, [Appellants] in this matter have remained in the
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jurisdiction of the trial court with their litigation position
unchanged.
In the case at bar, [Appellants] broadly allege prejudice through
conclusory statements, while failing to specifically articulate their
actual detriment. [Appellants] make a somewhat confusing claim
that the prejudice against them arises from the action this [c]ourt
took in informing the parties of the jury selection error and
subsequent destruction of the jury questionnaires. However,
while [Appellants] seemingly identify this [c]ourt as the source of
the prejudice, they fail to argue how they are being injured. As
such, we cannot consider the merits of their argument. Therefore,
we find [Appellants’] assertion is merely conclusory and fails to
demonstrate actual prejudice. See id. Furthermore, similar to
Millard, in this case there are outstanding, timely motions for
post-trial relief that have yet to be resolved.
As detailed above, in the procedural history of the instant matter,
we held a hearing on [State Farm’s] original, timely [m]otion for
[p]ost-[t]rial [r]elief on January 9, 2020. During that hearing, we
allowed the parties to argue [State Farm’s] motion. However, we
refrained from rendering any decision. Instead, we informed the
parties of the jury selection error. We allowed time for [State
Farm] to file a supplemental [m]otion for [p]ost-[t]rial [r]elief,
regarding only the jury selection issue, and we ordered
supplemental briefs from both parties[] arguing the issue[s].
Although[,] unlike [in] Millard, we did allow for oral arguments
on the original issues raised by [State Farm,] … similar to Millard,
we never relinquished jurisdiction by rendering a decision on the
issues presented. Instead, we allowed for supplemental briefs,
considered all the arguments, and refrained from rendering a
decision until now. Therefore, we find that we had continuing
jurisdiction over [State Farm’s] post-trial [motion] and
[Appellants’] litigation position remained unchanged by [State
Farm’s] [s]econd [m]otion for [p]ost-[t]rial [r]elief.
Id. at 5-6 (emphasis in original).
Appellants’ cursory argument that under Rule 227.1(c), State Farm’s
“motion is untimely and this constitutes waiver” fails to convince us that the
court abused its discretion by considering the motion. Appellants’ Brief at 41
(unnumbered). The court provided a detailed discussion of its reasons for
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concluding that Appellants had not established that they suffered prejudice
due to the timing of the motion, and the court found that “fundamental
fairness” warranted consideration of the motion. TCOO at 7. Appellants offer
no cogent response to the court’s reasoning. Additionally, as State Farm
correctly observes, Appellants’
brief does not appear to set out any contention that they were
prejudiced by the timing of the filing, or the court’s decision to
consider that filing. [Appellants’] brief contends that they were
prejudiced by the trial court’s reliance on what they term “ex parte
hearsay” with court staff, and by the trial court’s ultimate ruling
that the case should be retried. These contentions, however, go
to the merits of the trial court’s decision, and do not reflect
prejudice to [Appellants] by the timing of the motion.
State Farm’s Brief at 28-29 (emphasis in original; citations to the record
omitted). We agree. Thus, Appellants’ have not demonstrated an abuse of
discretion by the trial court in considering State Farm’s second post-trial
motion.
Appellants also contend that the trial court was precluded from granting
State Farm’s request for a new trial, based on the error in the jury selection
process, because a verdict had been entered. In support, Appellants cite 42
Pa.C.S. § 4526, which requires that a challenge to the jury array be raised
within ten days, and 42 Pa.C.S. § 4527, which states that a “a trial by jury
and its rendition of a verdict in any matter shall constitute waiver” of any
“errors and omissions in the selection of jurors under this subchapter….”
According to Appellant, these provisions demonstrate that, once the verdict
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was entered in this case, any challenge to the jury-questionnaire error was
waived.
Initially, we note that Appellants failed to raise any claim based on
sections 4526 or 4527 in their Rule 1925(b) statement; thus, their argument
is waived. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the
Statement and/or not raised in accordance with the provisions of this
paragraph (b)(4) are waived.”).
In any event, we would deem their claims meritless. Aside from quoting
the statutes, Appellants offer no developed discussion of how these statutes
apply to the unique facts of this case. As State Farm observes, section 4526
“sets out the procedure for challenging compliance with the statutory process
used to select a jury array,” while the issue in this case “instead addresses
the voir dire process used to select the jurors seated on the petit jury that
heard the case. Thus, [section] 4526 has no bearing on this matter.” State
Farm’s Brief at 30 (emphasis in original).
Regarding section 4527, State Farm notes that the statute states that it
“applies to ‘errors and omissions in the selection of jurors under this
subchapter…[.]’” Id. at 31 (quoting 42 Pa.C.S. § 4527 (emphasis added)).
State Farm continues: “The ‘subchapter,’ 42 Pa.C.S. §§ 4521-4527, addresses
the technical requirements for the identification and summoning of jurors to
appear for jury duty[,]” and 42 Pa.C.S. § 4526(f) states that, “[n]othing in
this subchapter shall affect the existing practice with respect to peremptory
challenges and challenges for cause.” Id. at 31, 32. Therefore, “[s]ection
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4527 does not apply to errors in voir dire, the selection of a petit jury from
the panel of potential jurors, or the challenge[-]for[-]cause process.” Id. at
32.
Again, Appellants fails to offer any discussion in their principal brief of
why sections 4526 and 4527 apply to the issue at hand. They also offer no
response in their reply brief to State Farm’s arguments that those provisions
are inapplicable. Thus, we would agree with State Farm that Appellants’ claim
that the jury-questionnaire issue was waived once the verdict was entered is
meritless, even had they preserved it for our review.
Appellants also contend that the trial court’s decision to award State
Farm a new trial was error because it was based on off-the-record evidence
and ex parte communications between the trial court and court administration.
They also insist the court ordered a new trial sua sponte.
We are unconvinced. First, the court ordered a new trial based upon
State Farm’s motion and argument; thus, it was not sua sponte. Second, the
court did not rely on non-record evidence or ex parte communications in
granting a new trial. As State Farm explains,
[t]he facts supporting the trial court’s decision … were put on the
record. The trial court conveyed the nature, scope and substance
of the error on the … record at oral argument on the first motion
for post-trial relief. All parties were aware of these facts,
conveyed by a representative of Monroe County [C]ourts on behalf
of the Monroe County [C]ourts. Either party was free to
investigate the issue further (and, indeed, were specifically invited
to do so) if they found the court’s on-the-record recitation of facts
wanting. There is no reason to believe that a Judge of the Monroe
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County [C]ourts is incompetent to convey information known to
the Monroe County [C]ourts regarding the operation of the court.
State Farm’s Brief at 40-41 (footnote omitted). We agree with State Farm’s
argument.
We also discern no abuse of discretion in the trial court’s decision to
presume that State Farm was prejudiced by the jury-questionnaire error,
under the unique circumstances of this case. In this regard, the court
explained:
In the instant matter, this [c]ourt unintentionally propagated
inaccurate juror questionnaires during our November 2019 Trial
Term. The inaccuracies were such that the attorneys involved in
jury selection were unable to discover the error at the time the
jury was empaneled. Furthermore, because the error caused juror
answers to be offset from their corresponding questions, attorneys
who were reasonably relying on the accuracy of juror
questionnaires were unwittingly deceived. … [W]e find that juror
questionnaires are an effective, time-saving tool to be used in
conjunction with voir dire. As such[,] we seek to encourage their
usage. While we recognize that Pennsylvania law strongly
supports upholding a verdict, we cannot do so under the present
circumstances. Unfortunately, due to the destruction of the
records, the damage done to the parties is incalculable. Without
knowing the jurors’ correct answers, it is impossible for this
[c]ourt to determine whether a juror was impermissibly permitted
to participate in the instant matter. Therefore, due to the [c]ourt’s
wide-spread error and our inability to say that the selected jury
was fair, competent, or impartial, we find [State Farm] was
prejudiced, and has shown the jury selection error contributed to
the result reached by the jury.
TCOO at 12-13.
State Farm defends the trial court’s conclusion that prejudice must be
presumed in this case, stating:
The Supreme Court of Pennsylvania has held that when an error
occurs which calls into question the fundamental impartiality of
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the jury, and the court is not in a position to determine whether
prejudice occurred, a new trial must be awarded to preserve the
integrity of the jury system. Bruckshaw v. Frankford Hosp. of
Phila., … 58 A.3d 102, 116 ([Pa.] 2012). Thus, in light of the trial
court’s inability to say that a fair voir dire was conducted and a
competent and qualified jury was empaneled, it properly
presumed prejudice and ordered a new trial.
“The right to a jury in a civil action is a fundamental aspect of our
system of law,” and, “the right to a trial by an impartial jury is
enshrined in the Pennsylvania Constitution.” Bruckshaw, … 58
A.3d at 109 (citing Pa. Const. Art. I § 6) (emphasis added).
Indeed, “[o]ne of the most essential elements of a successful jury
trial is an impartial jury.” Id. at … 109 (citations omitted). Among
other things, the “sanctity of the jury” is protected “through the
voir dire process [where] individuals with bias or a close
relationship to the parties, lawyers or matters involved are
examined and excluded.” Id. … at 110 (citations omitted). “The
process by which the principal jurors and alternate jurors are
chosen is crucial to the preservation of the right to an impartial
jury.” Id. at … 112. In light of these fundamental concerns, the
Supreme Court has held that prejudice is properly presumed and
a new trial is required when the qualification, competency and
impartiality of the jury cannot be ascertained.
In Bruckshaw, supra, a court staff member replaced a primary
juror with an alternate juror immediately before deliberations
without notifying the parties or providing an explanation for doing
so. Id. at … 105. The replacement may have been related to an
error in moving jurors from room to room, but there was no
evidence as to the exact circumstances of the change. Id.
Notably, the error was not discovered until after the jury delivered
its verdict. Id. After finding that the replacement of a primary
juror was an abuse of discretion, the Supreme Court rejected the
argument that any such error was harmless because the alternate
juror was equally competent to serve. [Id. at] … 113-14.
Instead, the Supreme Court chose to presume prejudice to protect
the integrity of the jury system. Id.
The Supreme Court explained, it is the court’s “duty to ensure a
fair trial and protect the integrity of the jury,” and it “cannot do
so if [the court] impose[d] the impossible burden of requiring a
showing of prejudice.” Id. at … 113. The court emphasized that
“the inability to assess prejudice in this case causes the error to
defy analysis by prejudice standard; to hold otherwise would
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immunize such jury irregularities from review. In such a situation,
to protect the integrity of a jury verdict, a new trial must be
granted.” Id.
The Supreme Court reviewed other scenarios where it had
presumed prejudice. These included situations where there had
been unexplained ex parte communication with a juror, and where
there had been improper contact with a juror even without
certainty that prejudicial information had been exchanged. Id. at
… 114. It distinguished those situations, and [the circumstances]
at issue in Bruckshaw, with other scenarios in which a showing
of prejudice was required. Id. Cases where prejudice is required
“have in common notice to the parties, and the trial court’s
exercise of discretion, in open court, based on facts of record.”
Id. at … 115. Thus, when the trial court is able to exercise its
discretion, based on a record, a showing of prejudice is required.
Id. at … 115-16.
The Supreme Court continued, “[t]he mischief of uncertainty is
what distinguishes this case from those where we have required
a showing of prejudice.” Id. “[W]here there is no exercise of
discretion, there is nothing to which to defer.” Id. at … 116. “It
is precisely the unknown, opaque nature of the facts before us
that calls into question the integrity of the jury far more than an
erroneous decision made on the record in open court.” Id. The
[C]ourt emphasized that[,] due to the circumstances, “we cannot
discern the cause of this jury irregularity.” Id. “It is this
uncertainty that causes us to impose the remedy of a new trial, to
protect the sanctity of the jury from innocent mistakes as well as
iniquitous intentions.” Id.
State Farm’s Brief at 34-37.
We recognize that in Bruckshaw, the jury irregularity was clear while,
here, in contrast, it is unclear if the questionnaire error impacted the pool of
individuals from which the jury was chosen. Nevertheless, we agree with
State Farm that Bruckshaw supports the court’s decision to award a new
trial. “The crux of Bruckshaw is that when an error occurs which threatens
the integrity of the jury, and neither the trial court nor the reviewing courts
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are in a position to determine whether that error resulted in prejudice,
prejudice must be presumed, and a new trial must be awarded.” State Farm’s
Brief at 37. As State Farm and the trial court both stress, there was a systemic
breakdown in the operations of the court, which may have impacted counsels’
ability to conduct an adequate voir dire. It is unfortunate that the error was
not discovered until after a verdict was rendered in this case and the jury
questionnaires were destroyed. These circumstances made it impossible for
the trial court or counsel “to discern which questionnaires were incorrect and
the extent of possible damage….” TCOO at 3. Ultimately, the court was
unable to determine “that the selected jury was fair, competent, or impartial.”
Id. at 13. Under these facts, we cannot say that the trial court abused its
discretion by presuming that State Farm was prejudiced and ordering a new
trial. Id. at 13; Bruckshaw, supra. Therefore, we affirm the June 2, 2020
order and remand for a new trial.
May 18, 2020 order affirmed. June 2, 2020 order affirmed. Case
remanded for further proceedings. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/26/21
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